Republic v CS Ministry of Petroleum Mining & 4 others Ex-parte Muthoni Kihara & another [2019] KEELC 927 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a mining company's judicial review bid because it was re-litigating disputes courts had already decided.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / abuse of process in judicial review proceedings
The issues raised were res judicata and the motion was struck out as an abuse of the court process
The applicant had litigated the same claim - that it held mining rights over LR No.12199/4 despite the landowner's refusal of consent - in Nairobi HC Misc. Appl. No. ELC 84 of 2011 and Civil Appeal No. 10 of 2014. Both courts dealt with the requirement of landowner consent and the issuance or renewal of licences. Although res judicata strictly does not apply to judicial review, the court has inherent jurisdiction to terminate abusive proceedings. The applicant should have sought interpretation and enforcement of the earlier judgments instead of re-litigating.
Limits of judicial review against a prior appellate judgment
The ex-parte applicant was improperly asking the court to sit on appeal over the Court of Appeal judgment by asserting mining rights notwithstanding refusal of landowner consent
The applicant contended the impugned decision was influenced by an error of law - misinterpretation of Civil Appeal No. 10 of 2014. The court held it could not purport to review or reinterpret the Court of Appeal's judgment in first-instance judicial review proceedings; the proper course was to seek interpretation or enforcement in those earlier proceedings.
Legal principles established
#- A party cannot, by introducing a new party or re-framing pleadings, evade prior adjudication; bringing fresh proceedings over a matter already finally decided by a competent court is an abuse of process
- A court of first instance cannot sit on appeal over a Court of Appeal judgment; the remedy is interpretation and enforcement in the proceedings in which the judgment was made
- Although strictly res judicata under Section 7 of the Civil Procedure Act does not apply to judicial review proceedings, the court retains inherent jurisdiction to terminate proceedings that abuse its process in circumstances where res judicata principles would apply
Court orders
#- 1.The Notice of Motion application dated 21st January 2019 is struck out
- 2.Costs of the application to the Respondents and the Interested Party
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Sections 4 and 13 of the Environment and Land Court Act; Article 47 of the Constitution as read with Sections 7, 8, 9 and 11 of the Fair Administrative Action Act, 2015; Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v CS Ministry of Petroleum Mining & 4 others Ex-parte Muthoni Kihara & another [2019] KEELC 927 (KLR)", Case Analysis (2019). Judicial Review Miscellaneous Application (Notice of Motion dated 21st January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/927/eng@2019-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.